Menopause: The centre of an increasing number of Employment Tribunal claims
Recent research released by The Menopause Group showed that employment tribunals concerning menopause have quadrupled since 2018. There is no indication to suggest that this trend will reverse and employers ought now consider their own practices to ensure that they reduce the risk of being on the wrong side of menopause-related litigation.
When it comes the menopause, employers do not currently have any specific legal obligations they must meet. However, they do have legal obligations not to treat employees unfairly – or to discriminate against them – because of their sex, meaning they should not use the menopause as means to treat female employees unfavourably.
Menopause as a Disability?
As things stand, menopause itself isn’t classed as a disability, however some severe symptoms of the menopause might constitute disabilities, meaning this could trigger an employer’s obligation to make reasonable adjustments and protection from less favourable treatment for employees who are living with symptoms as shown in the case of Miss J Donnachie v Telent Technology Services Limited. Here, a preliminary judgement was passed which categorised an employee’s symptoms of menopause as meeting with the definition of disability for the purposes of the Equality Act 2010. The Claimant in this case experienced extreme hot flushes and poor sleep. To attract a legal status of “disabled” an individual has to show that they have a physical or mental impairment that has ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. This is a very broad definition and many impairments are capable of being captured and in this case, the Judge was of the view that the Claimant’s symptoms met with each of these limbs of the test for disability.
In terms of day-to-day practice this is not a situation which would be beyond the realms of possibility and an employee might experience the same extreme hot flushes which may impact upon the employee’s ability to carry out their work as normal. The employee may raise this with their employer and ask to be moved to a desk nearer to a window. If the employer unreasonably refused to make this adjustment then this could amount to a failure to make reasonable adjustments and potentially, if a Judge found in the employee’s favour on the categorisation of them as a disabled person could amount to a successful unlawful discrimination claim.
There is currently no legal obligation for employers to have a menopause policy, but it is something worth looking at implementing and which could bring significant benefits to a business. A policy would initially serve as a means of highlighting awareness amongst managers of the menopause as a real occupational health issue.
Workplace policies ultimately serve as useful education tools, and the more educated staff members are about real-life issues, the less fear, bias and discrimination tends to arise. This helps break taboos and support a workplace culture where women feel comfortable discussing their symptoms.
As an example, it is generally accepted that flexible working can be extremely beneficial to menopausal women. Having a policy which normalises flexible working for this demographic can help to remove any bias or misunderstanding which may exist among other segments of the workforce. By normalising practice and measures, businesses and organisations can ensure that women feel recognised and included.
For employers who have a dedicated diversity and inclusion agenda, menopause is certainly something that should be considered and having a policy will help to feed into any EDI objectives in a meaningful way.
What happens if employers don’t support menopausal employees sufficiently?
The biggest legal risk is ending up on the wrong side of an employment tribunal claim. As yet, there has not been a final tribunal decision which defines menopause as a disability, but we have had first instance decisions which have said this – and we continue to see a significant increase in the number of legal complaints being made which relate to treatment experienced as a result of menopause.
This means that, while discrimination claims based on menopause may therefore be defendable at this moment in time, other claims – including those relating to wider unfair treatment or subjection to disadvantage – may not be.
Fifty-one percent of the UK population is currently female, so this is an issue which is only going to gain momentum. There will be no backward trend; women are feeling more empowered than ever by society to raise concerns with their employers, meaning organisations that do not include HR with decisions relating to menopause related matters will potentially experience problems.
Should menopause be classed a disability?
In addition, the 50 – 64 age group is the fastest-growing economically active group in the UK, due to factors including the increase in the state pension age for women, increased life expectancy and the impact of Covid. Of the 70% of women in employment in the UK, almost 4.5 million fall into this age bracket, so it is an employer’s interests to retain this demographic.
Labour laws should always strive to adequately reflect societal and workplace issues, but they are far behind in the context of the menopause, which is not something women have spoken about so vocally before. The law will need catch up to prevent the less favourable treatment of women on grounds of menopause, however I would object to a categorisation of “disability”.
The menopause is not an impairment: it is a natural part of being a woman, and a reference to “disability” suggests inability, giving rise to the suggestion that something is wrong. Menopause does not create inability and it is entirely natural. It is the final part of the reproductive cycle and is as nature intended. Food for thought perhaps, but if you categorise this part of the reproductive cycle as a disability, where do you draw the line? Puberty, periods, pregnancy: are these included?
Increased workplace protections for menopausal women would certainly be welcomed, but a label of disability will potentially do more harm than good. It may be that an acceptance that existing equality provisions are not adequate in order to address issues such as the menopause is now needed with steps being taken to introduce new, specific measures tailored to address this issue.
Author: Charlotte Geesin, Head of Employment Law & Business Immigration at Howarths
If you would like to discuss the matter of menopause in the workplace further then please do contact a member of the Employment Team on 01274 864999 who will be more than happy to assist.